Having concluded its consideration of
communication No. 857/1999 submitted to the Human Rights Committee by
Messrs. Miroslav Blazek, George A. Hartman and George Krizek under the
Optional Protocol to the International Covenant on Civil and Political
Rights,

Having take into account all written information made available to it by the
authors of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The authors of the communications (dated 16 October 1997, 13 November
1997, and 29 November 1997 and subsequent correspondence) are Miroslav
Blazek, George Hartman and George Krizek, natives of Czechoslovakia who
emigrated to the United States after the Communist takeover in 1948, and who
subsequently became naturalized United States citizens. They claim to be
victims by the Czech Republic of violations of their Covenant rights, in
particular of article 26. They are not represented by counsel.

The facts as submitted

2.1 The authors are naturalized United States citizens, who were born in
Czechoslovakia and lost Czechoslovak citizenship by virtue of the 1928
Naturalization Treaty between the United States and Czechoslovakia,. which
precludes dual citizenship. They left Czechoslovakia after the Communist
takeover in 1948. Their properties in Czechoslovakia were subsequently
confiscated pursuant to confiscation regulations of 1948, 1955 and 1959.

2.2 Mr. Miroslav Blazek states that he is precluded from claiming his
inheritance, including real property in Prague and agricultural property in
Plana-nod-Luznici because he is not a Czech citizen. He submits copy of a
letter from his lawyer in the Czech Republic, advising him that he could not
file a claim in the present circumstances, since he does not fulfil the
conditions of Czech citizenship required by the applicable law. However, his
uncle, a French and Czech citizen, submitted a claim on his own behalf and
on behalf of the author concerning jointly-owned property in Prague; the
Government, however, severed the case and denied the author his share.

2.3 George A. Hartman, an architect by profession, was born in 1925 in the
then Czechoslovak Republic and emigrated to the United States on 26 December
1948. He obtained political asylum in the United States and became a
naturalized United States citizen on 2 April 1958, thus becoming ineligible
for dual citizenship according to the 1928 Naturalization Treaty between the
United States and Czechoslovakia. Until December 1948 he and his brother Jan
(who subsequently became a French citizen while retaining Czech citizenship)
had owned four apartment buildings in Prague and a country home in Zelizy.

2.4 By judgement of 1 July 1955 the Criminal Court in Klatovy found Mr.
Hartman to have illegally left Czechoslovakia. He was sentenced in absentia
and his property in Czechoslovakia was formally confiscated as a punishment
for the illegal act of leaving the Czechoslovak Republic in 1948. Pursuant
to law 119/1990, adopted after the demise of the Communist government, the
author's criminal conviction for illegally leaving the country was
invalidated.

2.5 By application of 17 October 1995 Mr. Hartman sought the restitution of
his property, but his application was rejected because he did not fulfil the
requirement of Czech citizenship. In order to qualify under the restitution
law, Mr. Hartman continued to seek to obtain Czech citizenship for many
years. Since 9 November 1999 he has dual Czech and United States
citizenship. Notwithstanding his current Czech citizenship, he has not been
able to obtain restitution because the statute of limitations for filing
claims for restitution expired in 1992.

2.6 George Krizek states that his parents' property, including a wholesale
business (bicycles) in Prague, a grain and dairy farm in a Prague suburb,
and agricultural land in Sestajovice, was confiscated in 1948 without any
compensation. After the death of his parents, he fled Czechoslovakia and
emigrated to the United States, becoming a naturalized citizen in 1974. In
April 1991 he claimed ownership of his property pursuant to Law No.
403/1990, but his claims were rejected by the Ministry of Agriculture. In
1992 the author again presented his claims under laws 228 and 229/1991.
However, he was informed that in order to be eligible for restitution, he
would have to apply for Czech citizenship and take up permanent residence in
the Czech Republic. Notwithstanding, he again filed a claim through his
lawyer in Prague in 1994, without success.

2.7 By virtue of a 1994 judgement of the Czech Supreme Court, the
requirement of permanent residence for restitution claims was removed,
however the requirement of Czech citizenship remains in force.

The Complaint

3.1 The authors claim to be victims of violations of their Covenant rights
by the Czech Republic in connection with the confiscation of their
properties by the Communist authorities and the discriminatory failure of
the democratic Governments of Czechoslovakia and of the Czech Republic to
make restitution. They contend that the combined effect of Czech laws
119/1990 (of 23 April 1990) on Judicial Rehabilitation, 403/1990 (of 2
October 1990) on restitution of property, 87/1991 (of 21 February 1991,
subsequently amended) on Extra-Judicial Rehabilitation, 229/1991 (of 21 May
1991) on Agricultural Land and 182/1993 (of 16 June 1993) on the creation of
the Constitutional Court together with the position taken by the Czech
Government on Czech citizenship discriminates against Czech émigrés who lost
Czech citizenship and are now precluded from recovering their property.

3.2 The authors refer to the Committee's decision concerning communication
No. 516/1992 (Simunek v. The Czech Republic) in which the Committee held
that the denial of restitution or compensation to the authors of that
communication because they were no longer Czech citizens constituted a
violation of article 26 of the Covenant, bearing in mind that the State
party itself had been responsible for the departure of its citizens, and
that it would be incompatible with the Covenant to require them again to
obtain Czech citizenship and permanently to return to the country as a
prerequisite for the restitution of their property or for the payment of
appropriate compensation.

3.3 The authors contend that, in order to frustrate the restitution claims
of Czech émigrés to the United States, the Czech authorities used to invoke
the 1928 United States Treaty with Czechoslovakia which required that anyone
applying for the return of Czech citizenship. First renounce United States
citizenship. Although the Treaty was abrogated in 1997, the subsequent
acquisition of Czech citizenship does not, in the view of Czech authorities,
entitle the authors to reapply for restitution, because the date for
submission of claims has expired.

3.4 Reference is made to the case of two other American citizens who applied
to the Czech courts for a ruling aimed at the deletion of the citizenship
requirement from law 87/1991. The Czech Supreme Court, however, confirmed in
its Judgement US 33/96 that the citizenship requirement was constitutional.

3.5 The authors further complain that the State party is deliberately
denying them a remedy and that there has been a pattern of delay and
inaction aimed at defeating their claims, in contravention of article 2 of
the Covenant.

3.6 One of the authors, George A. Hartman, illustrates the alleged
discrimination by referring to the case of his brother Jan Hartman, who is a
Czech and French citizen, and who was able to obtain restitution for his
half of the property in Prague confiscated in 1948 pursuant to judgement of
25 June 1991, whereas the author was denied compensation because at the time
of filing his claim he was not a Czech citizen.

Exhaustion of domestic remedies

4.1 The authors claim that in their cases domestic remedies are
non-existent, because they do not qualify under the restitution law.
Moreover, the constitutionality of this law has already been tested by other
claimants and affirmed by the Czech Constitutional Court. They refer, in
particular, to the finding of the Constitutional Court in case US 33/96 (Jan
Dlouhy v. Czech Republic, decision of 4 June 1997), confirming the
constitutionality of the citizenship requirement in order to be an "eligible
person" under the Rehabilitation Law No. 87/1991.

4.2 They complain that since 1989 they have devoted considerable amount of
time and money in futile attempts to obtain restitution, both by engaging
formal judicial procedures and by addressing petitions to government
ministries and officials, including judges at the Constitutional Court,
invoking inter alia the Czech Charter on Basic Rights and Freedoms.

Consideration of admissibility and examination of the merits

5.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.

5.2 The Committee has ascertained that the same matter is not and has not
been submitted to any other instance of international investigation or
settlement.

5.3 With regard to the requirement laid down in article 5, paragraph 2 (b),
of the Optional Protocol that authors exhaust domestic remedies, the
Committee notes that the State party has not contested the authors' argument
that in their cases there are no available and effective domestic remedies,
and in particular, that because of the preconditions of law 87/1991, they
cannot claim restitution. In this context, the Committee notes that other
claimants have unsuccessfully challenged the constitutionality of the law in
question; that earlier views of the Committee in the cases of Simunek and
Adam remain unimplemented; and that even following those complaints, the
Constitutional Court has upheld the constitutionality of the Restitution
Law. In the circumstances, the Committee finds that article 5, paragraph 2
(b), of the Optional Protocol does not preclude the Committee's
consideration of the communications of Messrs. Blazek, Hartman and Krizek.

5.4 With regard to the author's claim that they have suffered unequal
treatment by the State party in connection with the scheme of restitution
and compensation put into effect after the Optional Protocol entered into
force for the State party the Committee declares the communication
admissible, insofar as it may raise issues under articles 2 and 26 of the
Covenant.

5.5 Accordingly, the Committee proceeds to an examination of the merits of
the case, in the light of the information before it, as required by article
5, paragraph 1, of the Optional Protocol. It notes that it has received
sufficient information from the authors, but no submission whatever from the
State party. In this connection, the Committee recalls that a State party
has an obligation under article 4, paragraph 2, of the Optional Protocol to
cooperate with the Committee and to submit written explanations or
statements clarifying the matter and the remedy, if any, that may have been
granted.

5.6 In the absence of any submission from the State party, the Committee
must give due weight to the submissions made by the authors. The Committee
has also reviewed its earlier Views in cases No. 516/1993, Mrs. Alina
Simunek et al. and No. 586/1994, Mr. Joseph Adam. In determining whether the
conditions for restitution or compensation are compatible with the Covenant,
the Committee must consider all relevant factors, including the original
entitlement of the authors to the properties in question. In the instant
cases the authors have been affected by the exclusionary effect of the
requirement in Act 87/1991 that claimants be Czech citizens. The question
before the Committee is therefore whether the precondition of citizenship is
compatible with article 26. In this context, the Committee reiterates its
jurisprudence that not all differentiations in treatment can be deemed to be
discriminatory under article 26. A differentiation which is compatible with
the provisions of the Covenant and is based on reasonable grounds does not
amount to prohibited discrimination within the meaning of article 26.

5.7 Whereas the criterion of citizenship is objective, the Committee must
determine whether in the circumstances of these cases the application of the
criterion to the authors would be reasonable.

5.8 The Committee recalls its Views in Alina Simunek v. The Czech Republic
and Joseph Adam v. The Czech Republic, where it held that article 26 had
been violated: "the authors in that case and many others in analogous
situations had left Czechoslovakia because of their political opinions and
had sought refuge from political persecution in other countries, where they
eventually established permanent residence and obtained a new citizenship.
Taking into account that the State party itself is responsible for [their] …
departure, it would be incompatible with the Covenant to require [them] … to
obtain Czech citizenship as a prerequisite for the restitution of their
property, or, alternatively, for the payment of compensation" (CCPR/C/57/D/586/1994,
para. 12.6). The Committee finds that the precedent established in the Adam
case applies to the authors of this communication. The Committee would add
that it cannot conceive that the distinction on grounds of citizenship can
be considered reasonable in the light of the fact that the loss of Czech
citizenship was a function of their presence in a State in which they were
able to obtain refuge.

5.9 Further, with regard to time limits, whereas a statute of limitations
may be objective and even reasonable in abstracto, the Committee cannot
accept such a deadline for submitting restitution claims in the case of the
authors, since under the explicit terms of the law they were excluded from
the restitution scheme from the outset.

The Committee's Views

6. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation or
article 26, in relation to Messrs. Blazek, Hartman, and Krizek.

7. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide the authors with an effective
remedy, including an opportunity to file a new claim for restitution or
compensation. The Committee further encourages the State party to review its
relevant legislation and administrative practices to ensure that neither the
law nor its application entails discrimination in contravention of article
26 of the Covenant.

8. The Committee recalls, as it did in connection with its prior Views
concerning the cases of Alina Simunek and Joseph Adam, that the Czech
Republic, by becoming a State party to the Optional Protocol, recognized the
competence of the Committee to determine whether there has been a violation
of the Covenant or not and that, pursuant to article 2 of the Covenant, the
State party has undertaken to ensure to all individuals within its territory
or subject to its jurisdiction the rights recognized in the Covenant and to
provide an effective and enforceable remedy in case a violation has been
established.

9. In this connection, the Committee wishes to receive from the State party,
within 90 days following the transmittal of these Views to the State party,
information about the measures taken to give effect to the Views. The State
party is also requested to translate into the Czech language and to publish
the Committee's Views.
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